[Gold Smuggling case] Kerala High Court grants interim stay on judicial inquiry ordered by State Govt to examine role of Enforcement Directorate

The Kerala High Court on Wednesday temporarily stayed the judicial inquiry ordered by the State Government for examining the alleged attempt by the ED and other Central agencies to implicate Chief Minister, Pinarayi Vijayan, in the UAE gold smuggling case (Deputy Director of Enforcement Directorate Vs State of Kerala and ors.).Single-judge Justice PB Suresh Kumar stated that he was inclined to issue an interim order staying the judicial inquiry that had been ordered by the State Government under Chief Minister Pinarayi Vijayan as it is a matter to be examined by the Special Court examining the investigation. "The question of conspiracy in a case of this nature is one to be examined by the Special Court supervising the investigation. If parallel investigations and inquiries are conducted into questions of the said nature, I am of the prima facie view that the same would impede and derail the investigation and would ultimately go to the benefit of the accused, defeating the object of the legislation under which the accused are booked", the Court said..The Court also dispensed with the notice to Chief Minister Pinarayi Vijayan and to the Commission of Enquiry..In July 2020, pursuant to an investigation conducted by ED into money laundering, illegal financial transactions and massive gold smuggling through diplomatic channels, suspected offenders were arrested and interrogated in Kerala.Two of the accused persons, Swapna Suresh and Sandeep Nair, complained in a voice clip that was later aired by online news platforms, that they were coerced by some officers of ED to sign statements implicating then Principal Secretary to the Chief Minister and Home MinisterThereafter, the State Police filed two First Information Reports (FIRs) against the ED. The ED, through its Deputy Director, moved the High Court and the Court quashed the FIRs (P. Radhakrishnan vs State of Kerala and Ors.)Subsequently, in May, 2021, the Kerala Government, under Chief Minister Pinarayi Vijayan established a Judicial commission under the provisions of the Commissions of Inquiry Act,1952 (COI Act) chaired by former Kerala High Court judge, Justice (retd.) VK Mohan.This Commission was constituted to probe the alleged jurisdictional overreach and political bias of the agencies which the State government claimed was attempting to implicate the Chief Minister..During the hearing on July 1, 2021, Solicitor General Tushar Mehta, appearing for the ED, had argued that constitution of the Commission by the State Government was ultra vires Section 3 read with Section 2A of Commission of Inquiry Act (COI Act) wherein the Central Government is the competent authority for matters related to an entry in Central list/ list 1 of the 7th Schedule of the ConstitutionSection 3 of the COI Act states that a COI can be appointed "for the purpose of making an inquiry into any definite matter of public importance".However, Mehta submitted that the notification in this case was issued to impede an ongoing investigation against the same executive functionaries who have issued said notification and therefore it serves personal interestsMehta also argued that the commission has been constituted to overreach and circumvent the previous decisions of the Kerala High Court in P. Radhakrishnan vs State of Kerala and Ors. in which it had quashed the FIRs registered against ED officials over the same allegations. Therefore, he sought to quash the probe on the grounds that it was a malafide exercise of power and also went against the principles of co-operative federalism..[Gold smuggling case] Kerala High Court reserves verdict on plea by Enforcement Directorate to quash judicial inquiry ordered by State.Advocate General Gopalakrishna Kurup K had vehemently disagreed with the contention that the contents of the audio clip are not of public interest by citing the judgement of the Kerala High Court in Sajan Varghese Vs. Union of India.In the said judgment, the Court had held that "if the contents of the audio clip which was telecast are something which would disturb or affect the tempo of the life of the community or the tranquility of the society, it is a matter concerning public order" .Finding merit in the arguments of the ED, the Court issued the interim order accordingly.[Read Order]